NOTES AND COMMENTS 197

CONSTITUTIONAL LAW: INCONSISTENCY BETWEEN

STATUTES AND BY-LAWS.
The case of Powell v. M ay l raises an interesting point in the relation
between by-laws and statutes. The appellant acted as a bookmaker at a
country race meeting held in a field, and had been convicted under a
County Council by-law which prohibited bookmaking in a public place.
A public place was defined as including " any open space to which the
public have access for the time being," and hence included this field.
The by-law was within the power granted by the Municipal Corporations
Act 1882, but the appellant claimed it was repugnant to other statutes.
Two statutes were in point. S. 1 (1) of the Street Betting Act (1906)
was for all intents and purposes the same as the by-law, but s. 1 (4) in
defining a " public place" drew a distinction between enclosed and unen-
closed places which are open to the public, and provided that in such
enclosed places betting shall be unlawful only if a notice to that effect
were conspicuously exhibited. The field, which was surrounded by a
hedge, was an " enclosed place " within the meaning of the Act, and no
such notice was exhibited. The Lotteries Act (1934) provided that betting
was prohibited on a " track" (which was so defined as to include the field
in question) unless certain strict conditions were observed. But such
conditions had in fact been observed by the plaintiff.
Thus it was clear that the plaintiff's conduct was a breach of the
by-law, but that it came within the exceptions in each of the statutes
bearing on the point and so was not an offence against the statutes.
The appeal came before a Divisional Court (Lord Goddard C.J.,
Humphreys and Henn Collins JJ.). In delivering the judgment of the
Court Lord Goddard C.J. said that it was clear that a by-law which was
repugnant to the general law was bad; it" cannot permit that which a
statute expressly forbids nor forbid that which a statute expressly permit~,
though it can of course forbid that which otherwise would be lawful
at Common Law, otherwise no prohibitory by-law would be valid."
Statutes may not only prohibit acts, but also authorize them; it is rare
for this to be done expressly, but it may well be done by implication.
Such was the position in this case. "If Parliament prohibits a certain
thing from being done. and in the same Act says the prohibition
is not to apply if the very same thing is done in a certain way
or under certain conditions, it seems almost pedantic to say that Parlia-
ment has not at least impliedly authorized the doing of that thing subject
to the conditions laid down."
The by-law was therefore held to be repugnant to the statutes. The
statement of the learned Chief Justice that a by-law must not be repug-
nant to the general law is one frequently made, though it leaves perhaps
some doubt as to the meaning of the word" general." In Victoria the
position is governed by s. 201 of the Local Government Act (1928) which
provides that" No by-law. . shall contain matter contrary to
any public law in force in Victoria." It is to be presumed that the phrases
" public law" and" general law " are synonomous, and include statutes,
the common law, and, unless there is a special provision to the contrary in
1. [1946]1 K.B. 330; [1946]1 All E.R. 444.
198 RES JUDICATAE

the empowering Act, executive regulations. But it is submitted that the

judgment goes on to give a rather misleading impression when it says that
a by-law cannot permit that which a 8tatute expressly forbids (or forbid
what it permits), though it can forbid that which at common law is other-
wise lawful. A fuller statement would appear to be that a by-law cannot
make legal what the public law (i.e. statute or common law) forbids; but
it can, in general, make illegal that which the common law and the statute
book do not forbid. This second rule is of course subject to cases where
the public law has conferred an express or implied right to carry out some
action, in which case a by-law cannot take away such a right.
This however is a mere question of phraseology, and does not concern
the ratio decidendi of the case. The decision can be approached from two
aspects:
(i) The statute may be regarded as conferring a privilege or quasi-
property right on persons who carried on the business of book-
making within the restriction laid down by the Act. Such a
right, being conferred by statute, could not be removed by a
by-law.
(ii) The doctrine, well known in Australian constitutional law,
of" covering the field"2 may be applied. The statute may be
said to have laid down an exhaustive code on the subject of
bookmaking, and thus a law by an inferior body such as a
County Council could not alter it.
But in fact the two grounds would appear to say the same thing from a
different point of view. It depends on whether the case is considered
with regard to its specific effects on the rights of the plaintiff (in which
case the by-law will appear to infringe a privilege impliedly granted to him
by statute) or with regard to the general question of the proper sphere of
action of by-laws (when it will appear to be a case of a by-law purporting
to interfere in a field which had been exhaustively regulated by statute.)
The most important question is, not under what precise doctrine of
Constitutional law this decision is to be fitted, but how far it is likely to be
extended in the future. It seems that in Australia its extension will not
be very wide. The Australian Courts do not willingly /tccept the argu-
ment that the purpose of a statute has been to exclude from operation a
by-law which merely extends the scope of the statute, provided the by-
law is within the scope of its own empowering statute. Rather, the
presumption is the other way, that the statute intended to lay down a
minimum standard of conduct, and that local bodies should have the
power to make further regulations required by local conditions. In
Hallion v. Eade 3 Macfarlan J. applied to a by:law a principle enunciated
by Starke J. in Victoria v. Gommonwealth 4 with regard to conflict between
State and Federal legislation, that unless the lesser law was" entirely
destructive" of the provisions of the greater the courts would read them
together, rather than treat them as repugnant. 5 The decision in Powell
v. May was on a very special set of facts. The restrictions contained in
!. See Cowbum's Case, (1926) 37 C.L.R. 466; 32 A.L.R. 214, and cf. Stoek Moten Ploughs v.
Forsyth, (1932) 48 C.L.R. 128.
s. [1938] V.L.R. 179.
4. (1937) 58 C.L.R. 516, at 627-8.
D. See also Jenner v. Mildura, [1926] V.L.R. 514, and Matthews v. Prahran, [1925] V.L.R. 469.
 NOTES AND COMMENTS 199

the Act were extremely detailed and severe, and suggested that Parlia-
ment had considered in detail all the cases in which bookmaking was felt
to be undesirable. Therefore it was possible to infer an intent by Parlia-
ment that a person who complied with all the restrictions obtained a right
to act as a bookmaker; and it followed, of course, that such a right could
not be removed by a by-law.
The whole question of " inconsistency" or " repugnancy" has been
much more fully analysed in this country, because of its frequent occur-
rence in cases concerning the relation between State and Federal law
under s. 109 of the Constitution. It may be doubted, with respect,
whether an Australian Court would have regarded the legislation in
Pawell v. May as doing more than restricting a common law liberty,
without prejudice to the power of the Council to restrict it further.
R. L. FRANKLIN.

CONSTITUTIONAL LAW: STATUTORY CORPORATIONS AND

THE SHIELD OF THE CROWN.
The ever-recurring question whether a statutory body created for
the purpose of discharging functions and duties of a public commercial
nature is entitled to Crown immunities and prerogatives was raised in
Grain Elevators Board of Victoria v. Shire of Dunmunkle. 1 The appellant
board was a body corporate constituted under the Victorian Grain Ele-
vators Act, 1934. The Shire claimed that the Board was liable to the
payment of rates under the Local Government Act. The Board claimed
that it was exempt from rating under s. 249 (1) ofthat Act, which exempts
"land, the property of His Majesty which is occupied or used for public
purposes." The Supreme Court held for the municipality and on appeal
the High Court confirmed this decision, Rich J. dissenting.
In the High Court, only Latham C.J. and Williams J. based their
decision on general principles governing the relation between statutory
corporations and the Crown. Their observations may be summarized as
follows. In determining whether a statutory body is under the shield of
the Crown, each case must be resolved by a consideration of the purpose
and effect of the particular statute by which the statutory body is estab-
lished. In order to be entitled to the immunities of the Crown, the auth-
ority set up under statute must show that the functions which it discharges
are governmental in character. An incorporated body may be a govern-
ment department and hence entitled to Crown immunities 2 if the financial
control of the body is in the hands of the Crown: if revenues of the body
are paid into consolidated revenue and expenses appropriated thereout,
there is a probability of its being" under the shield."3 Where persons
or corporations are subject to ministerial control in the performance of
1. [1946] A.L.R. 273.
2. Repatriatifm CummissWn ". Kirkland, (1923) 32 C.L.R. l ' [1923] A.L.R. 297.
3. Metropolitan Meat Industl"1/ Board 11. 8heeit!h [1927] A.C. 899; Foz v. Newfoundland, [1898]
A.C. 667; for a recent example see In re M.athrick, 12 A.B.C. 212.